Copyright Law

Prof. Jepson

Spring 2000

General Instructions:

Put your Exam number on EVERY PAGE of this booklet.

This Exam is CLOSED BOOK. You may not use any books, notes, computer, or any aid, except a translation dictionary.

Write legibly and la=. No one will make an effort to decipher your work. THIS IS SOLELY YOUR RESPONSIBILITY.

This exam is worth 300 points (three hours - get it) and has five sections:
Section 1: Very Short Answer  25pts
Section 11  Short Argument 75pts
Section III  Brief Discussion  75pts
Section IV  Detailed Analysis  50pts
Section V  Multiple Choice  75pts

You may divide your time any way you choose. You may attempt the Sections in any order you like.

Section V - Multiple Choice: Fill in the Scantron Answer sheet. Fill in each bubble completely. Make no stray marks. Put your Exam No. on the Scantron sheet.

Sections I-IV: Obey all space and word limitations. No infraction will receive any points. Put your answers in sequentially numbered Blue Books with your Exam number on each blue book. Identify your written answers by question number.

Note: In sections 1, 11, & 111, you do no answer all the questions. You have a choice of which questions to answer.

Included herewith are Three Sheets of images for use with some of the questions as noted by, for example "(See images 3)."

SECTION ONE: Very short answer (25/300 points)

Answer any 5 of the following 9 questions for up to 5 points per. (up to 25 points total) Use
35 words or fewer for each question 1-9 that you answer.

1. In the American Geophysical case, Texaco argued the 1970 Supreme Court case of Williams & Wilkins case for the point that scientific research would be impaired without the fair use privilege for photocopying. The American Geophysical court was unpersuaded primarily because what had changed since the W& W case?

2. The Ticketmaster case (which I had Jason email you) addressed a fundamental legal issue facing Internet content providers. What were the facts for and the legal basis of the judges' decision.

3. What are the differences between a joint work and a collective work?

4. When Judge Kozinski rejected in the Stuff case Cohen's suggestion that moviemakers are immune from 204, Kozinski said that Cohen might fall into one narrow exception. What is the exception, and what facts in the Stuff case gave rise to the exception?

5. What's wrong with the Schoenberg test, which you read about in the Mashantucket Pequot Tribe case Jason emailed you? What test should replace it? Why?

6. Where in the 1976 Copyright Act is the support for holding one guy liable for the infringing acts of some other guy?

7. Murice's Clothing store is season sponsor for Plymouth NH Women's Auxiliary's "Showcase of Local Talent," which is broadcast Sunday evenings on KOPY radio. Without a sponsor, the broadcasts would not be possible. One talent sings a musical number from RENT. Assess Larson's chances suing Murice's (and explain why).

8. Why would Lloyd's of London oppose a change in the copyright law eliminating the "separability" test, which would have, for example, allowed Ferrari to go forward with a suit against Studebaker based on a claim to copyright in the Ferrari California motorcar?

9. Grant Wood registered "American Gothic" in 1930. Wood immediately assigned his rights in the renewal period to Hallmark Greeting Cards. Wood died in 1962. When does the copyright expire? When is the last opportunity for his children to terminate Hallmark's rights?

SECTION TWO Short Answer (75/300 points)

In 75 words or fewer per question (Nos. 10- 19), ARGUE any 5 of the following 9 positions for up to 15 points per. (up to 75 points total)

10. Leaving aside infringement, argue Big Al's fair use defense in Leroy Wright v. Big Al.

11. Leaving aside fair use, argue Big Al's noninfringement case in Leroy Wright v. Big Al.

12. Regarding the film Precious Images narrated by Jack Lemmon, argue ONE POSITION ONLY, i~~ copyright holders should, or , should not, be allowed to "pan and scan" without attaining permission of the director.

13. (See images 2) Debbie purchased from Paramount Pictures gift shop black & white stills of Chris Klein from the film "Here On Earth." Debbie prettily frames each still - as teenage girls would pictures of their boyfriend - and sells the framed images outside theatres showing the film. Argue Paramount's infringement case.

14. (See images 1) Mr. LaRue worked as a Safety Coordinator to investigate explosions and take photographs at explosion scenes for Oklahoma Gas (OG). On April 19, 1995, LaRue heard the explosion that destroyed the Murrah Building. Thinking it might be due to natural gas, LaRue drove to the scene in a OG vehicle. At the scene, with a camera and film supplied by OG, LaRue photographed a fire company crew going into a basement area to rescue victims. LaRue snapped the image of the firefighter and infant that later graced the cover of Newsweek. Argue OG's rights in the valuable image.

15. Content Providers sued iCraveTV in federal court in Pittsburgh. Most Canadian law professors argue that iCraveTV's Canadian rebroadcast activities are permitted under Canadian law. Argue the noninfringement case for iCraveTV.

16. As chief counsel for TIVO, argue to NBC's Bd. of Director's that NBC should invest in and join with TIVO. ("You are either on the train, or on the track.")

17. (See images 1) As counsel for Oddz-On, in litigation, argue for the copyrightability of the Koosh ball.

18.Argue that the Copyright Office should register the BREAKOUT video game.

19. ACME Software, Inc. developed "Speechwriter," which works in conjunction with Microsoft WORD. When a user blocks a word and enters AAlt Q,@ Speechwriter displays a series of famous quotations related to the selected words. Once in the Speechwriter mode, the program offers users a variety of convenient ways to search among quotations. The program allows the user to download the quotation into the WORD document. The Speechwriter program contains code from WORD needed to interact with the word processing software and the graphical interface. Microsoft sues. Argue ACME's defense.

SECTION THREE (Brief Answer)
Answer any combination of questions 20-26 having a total of 75 possible points. Answer only those questions.

20. (See images 1) On the issue of the copyrightability of the architecture only, compare and contrast the Lee Powell Laboratories with the Chiat/Day offices. (25 points)

21. (See images 2) Vanity Fair (VF) exhibits in the lobby gallery of its corporate HQ the original portrait of Demi Moore commissioned from famous photographer Annie Leibovitz. Later VF uses most of the image for the cover of the August 1991 VF. Later SPY does the cover illustrated. Ms. Leibovitz feels dishonored and seeks your counsel. Discuss what rights you can and cannot assert against SPY. (25 points)

22. (See images 3) Compare and contrast the ABSOLUTE OCEAN and ABSOLUTE IMPOTENCE works on the issues of Infringement and Fair Use. (25 points)

23. (See Images 1) Kerr, an art professor at UMass, sent The New Yorker magazine the Mohawk haircut drawing indicated. Two months later the June 10, 1995 New Yorker had the illustrated cover. Argue the New Yorker's noninfringement case. (25 points)

24. You represent the agency that produced Prof Jepson's award-winning high school yearbook "The Class of Click: Where everyone is beautiful, popular, and perfectly lit." Tired Yearbooks takes the yearbook around to other high schools promising to do a similar yearbook for them. Outline your arguments and your rebuttal to Tired's arguments for use at the Temporary Restraining Order hearing on copyrightability only. (50 points)

25. (See images 2) Apex imports from China, and Circuit City outlets throughout the country sell, the model AD-600 DVD player. Apex' website notes that the machine will: (1) record and play material on recordable CDs in MP3 format; (2) play DVDs form any region and in any format despite the region-based and format-based encryption (Microvision coding); and will transfer recorded materials from DVD, however coded or encrypted, into VHS cassette tapes for later playing. After the media began reporting on the AD-600, the following notice appeared on the Circuit City website:

"We are aware from media reports that initial production of the Apex AD600A had secret menus which allowed some users to bypass copyright protections built in to all DVD players. These menus have now been deleted from this player in recent production and our present stock reflects this fact. We purchased the AD600A based on its full array of legitimate features, quality construction and a most attractive price. It remains an outstanding value today!"

Discus Circuit City's liability and defenses. (50 points)

26. (See images 2) Alt v. Morello. Alt just graduated from the best photography school and worked at a commercial studio. Morello visited. Alt created the photograph (depicted in images) of the Cross pens positioned at an angle on a dark grid against a dark background, with the tips of the pen and pencil in a yellow toned circle lit from below. Morello produced his own photograph on a grid, and thereafter when Alt met with art directors they told Alt that they had seen the photograph before and thought it was Morello's.

A. Argue that Morello copied.

B. What test for infringement would Alt's attorney use and why?

C. Argue what relief Alt should get.

(50 points)

SECTION FOUR  Detailed Analysis (50 Points)

27. In 1911 Ernie Burnett wrote the music and Maybelle Watson, who was then his wife, wrote the words of a song entitled 'Melancholy.' This song was copyrighted on October 3 1, 1911, in Bumett's name as an unpublished work. This version was never published. During the final year of the copyright term, Maybelle, who was then Mrs. Bergman, as author of the words, and Mr. Burnett, as author of the music, renewed the copyright and assigned their respective renewals to Shapiro.

In 1912 Burnett offered to sell the unpublished song to Theron C. Bennett, a musical publisher. Mr. Bennett liked the melody but not the words. With Burnett's consent, Bennett engaged George A. Norton to write new words. Norton did so, and by a document dated

September 23, 1912, assigned his lyrics to Bennett "for the original copyright term together with all renewals or extensions." By an assignment which carried the statement, "Lyrics now by Geo. A. Norton," Burnett transferred to Bennett the 1911 copyright. Being thus the owner of Bumett's music and Norton's words, Bennett published the song on October 25, 1912 with the following copyright notice:

"Copyright MCMXI by Ernie Burnett
"Copyright transferred MCMXII to Theron C. Bennett, Denver, Colo."
On December 2, 1939, Burnett registered in the Copyright Office claim for renewal of copyright of the 1912 version of the song. Bennett did not deposit copies of the song, but copies were filed on January 10, 1939 by a transferee from Bennett, and the certificate of copyright registration then issued was subsequently acquired by Shapiro to whom Bennet assigned the renewal. Jerry Vogel claims this assignment and renewal effective and that they inured in Norton's son, under whose written recorded assignment Vogel claims co-ownership with Shapiro in the renewal copyright of the 1912 version of the song. Norton died before 1938 leaving a son as his only heir.

You represent Jerry Vogel. Argue:

A. Bennett obtained a valid copyright on the 1912 version!

B. Vogel owns the renewal of the 1912 copyright!

SECTION FOUR Multiple Choice (75 Points)

Record your answers on the Scantron sheet.Usea No. 2 pencil. Fill in each bubble completely. Make no stray marks.

1) George Lucas asks Tom Waits to write the soundtrack for Star Wars: The Phantom Menace. Waits isn't Lucas' employee, but Waits writes and signs the following document:

I agree that the soundtrack I write for Star Wars: The Phantom Menace shall be a work for hire.

Tom Waits"

a) The soundtrack is a work for hire owned by Lucas.
b) The soundtrack is not a work for hire because a work can only be a work for hire if
written by an employee.
c) The soundtrack is not a work for hire because the soundtrack wasn't specially ordered or
d) Neither (b) nor (c) are true, but the soundtrack is still not a work for hire.
e) The soundtrack is a work for hire owned by Lucas unless Tom Waits was an employee of
another person or company.

2) Dina Colosimo and Vicki Levin are involved in the creation of a script for a new sitcom; there are no other potential authors involved in this. Dina then authorizes CBS to produce the sitcom, which CBS does.

a) CBS is infringing Vicki's copyright if Dina's authorization wasn't in a writing signed by
b) CBS is definitely not infringing copyright.
c) CBS is infringing Vicki's copyright if Dina and Vicki are joint authors.
d) CBS may be infringing Vicki's copyright if Dina and Vicki are not joint authors.
e) CBS may be infringing Dina's copyright if Dina and Vicki are not joint authors.

3) Annie Leibovitz is paid by Steven Spielberg to create a giant one-of-a-kind black-and-white poster advertising his new movie; this poster is to hang on the side of a building on Sunset Blvd. in West Hollywood, and it is not a work made for hire. Spielberg eventually sells the poster at a charity auction. Ted Turner buys it and decides to colorize it and display it in his home. Leibovitz is tremendously upset, and wants to sue Turner. Under which claims might she be able to win?

a) The derivative work right.
b) The Lanham Act.
c) Artist's Rights, if Ted Turner's action would be prejudicial to Leibovitz' honor and
d) (a) and (c).
e) (b) and (c).

4) I buy a lawfully made copy of the New Yorker cover involved in the Steinberg case. I write on the cover "Another Copyright Travesty." I pin the cover on the bulletin board outside my office. Steinberg sues me in federal court. Assume fair use does not apply, and assume Steinberg still owns the copyright. Which of the following claims by Steinberg against me would be the strongest?

a) A claim for the violation of his right of integrity under 106A.
b) A claim for the violation of his public display right.
c) A claim for the violation of his derivative work right.
d) A claim for the violation of the First Sale doctrine.
e) All the above claims are sure losers.

5) The Cravath law firm buys an Andy Warhol painting and hangs it in its reception area, the strongest argument for why Cravath does not infringe:

a) Its actions aren't covered by the six rights enumerated in 106(l)-(6).
b) Its actions are exempted by 109.
c) Its actions are exempted by 110.
d) Its actions are exempted by 107.
e) Its actions are not criminal under 506.

6) To be protected by copyright, a work must meet at least the following requirements:

a) It must be an original work of authorship.
b) It must not be a derivative work.
c) It must contribute to the progress of Science and Useful Arts.
d) Two of the above. e (a), (b), and (c).

7) 1 write an unauthorized French translation of Steven King's Heartless Professor. King sues me for trademark infringement under the Lanham Act. Which of the following, if true, is Most likely to help me on the Lanham Act claim?

a) The French prefer Jacques Prevert.
b) My conduct infringes the Copyright Act.
c) I put a disclaimer on the cover saying (in French and English) "This translation is not
authorized by Steven King."
d) I am not making much money on the book.
e) (a) & (b) cut about equally in my favor.

8) 1 take a photograph of a building built in 1996. The design is protected as an architectural work, but which does not have any visible copyright-protected pictorial, graphical, or sculptural components (such as murals or friezes). The court concludes that the photograph copies some expression from the architectural design. I did not get the permission of the owner of the design.

a) The photograph is not an infringement because the building is a useful article.
b) The photograph is not an infringement for some other reason, but my publicly hanging
the photograph on a bulletin board outside my office is an infringement.
c) My publicly hanging the photograph on a bulletin board outside my office is an
infringement if the building is neither located in nor ordinarily visible from a public
d) My publicly hanging the photograph on a bulletin board outside my office cannot be an
infringement because of 109(c), but my taking the photograph is an infringement if the
building is neither located in nor ordinarily visible from a public place.
e) My taking the photograph is an infringement unless it's a fair use.

9) While using the FPLC computer lab, you make an infringing copy of Word for Windows. Microsoft sues the law school for infringement. Which of the following is most accurate?

a) The FPLC will certainly win under a fair use defense because FPLC provides the
computer lab for nonprofit educational purposes.
b) The FPLC will certainly lose because FPLC is vicariously liable for what FPLC students
and employees do on FPLC equipment.
c) If FPLC didn't know and had no reason to know of your infringement and if FPLC had
no right or ability to control your actions, then FPLC will win.
d) If FPLC didn't materially benefit from your actions, then FPLC will certainly win.
e) Whether FPLC knew or had reason to know of your infringement is irrelevant because
copyright infringement is a matter of strict liability.

10) In 1980, Alan Author conveys to Dreamworks all his rights in Attack of the Vampires. In 1990, Alan dies, leaving all his intellectual property to USC Law School. Alan is survived by his widow Wendy, his children Basil, and Carole, and his grandchildren Denise and Doug, who are the children of his dead son Darryl. Basil has children Ben and Bill. You represent Bill. Bill asks you whether, under 203, he'll ever be entitled to a share of the rights in Attack.

a) Bill will definitely never have any rights in Attack because Alan transferred all his
intellectual property by will to USC Law School.
b) Bill will definitely not have any rights in Attack if Wendy (assuming she's still alive at
the time of termination) votes against termination.
c) Bill will definitely not have any rights in Attack if Basil is still alive in 2015.
d) Bill will definitely have rights in Attack if Wendy (assuming she's still alive at the time
of termination) votes in favor of termination.
e) Two of the above.

11) 1 have just designed a pair of black socks with a white scales of justice design on them. I begin to market them without putting a copyright notice on them. If I am found not to own the copyright in the socks, this will most likely be because:

a) The socks are useful articles.
b) The socks were published without notice.
c) The design is too simple to be protected by copyright.
d) The socks are a work-for-hire, owned by FPLC.
e) The design is not original.

12) 1 lawfully own a copy of your work. I want to destroy my copy. You sue me under 106A, seeking to prevent the destruction. Which of the following will, even if true, does no help me?

a) Your work is a novel.
b) You are not the copyright owner.
c) Your work is a print, which exists in a limited edition of 50 copies that are signed but not consecutively numbered.
d) Your work is not of recognized stature.
e) All the above are helpful to me.

13) Raymond Chandler wrote and copyrighted The Big Sleep in 1956. Chandler assigns the copyright to Harcourt Brace Book Publishers in 1980. Chandler dies in 1984. HBBP publishes the book in 1985. Chandler's sole surviving daughter can terminate HBBP's rights:

a) Between 2015 and 2030.
b) Between 2020 and 2025.
c) Between 2025 and 2030.
d) Between 2012 and 2017.
e) Anytime after January 1, 1978.

14) In the Raymond Chandler question (13) above, the very last day the daughter can serve notice is: a 2013. b 2018. c 2023. d 2010. e Anytime, but she cannot effectuate the termination outside the 5 year window.

15) Musical compositions

a) Are not protected by copyright if they are not fixed in a tangible medium of expression.
b) Are protected by copyright against literal copying but not against sound a likes.
c) Are protected by copyright against unauthorized reproduction but not against public
d) Are protected by copyright regardless of any of the factors given in (a)-(c).
e) Two of the above.

16) Disney manufactures a videocassette of Beauty and the Beast in Los Angeles, and exports it to Russia. Badenov makes an unauthorized copy. Badenov brings the unauthorized copy back to the U.S. Before Badenov gets a chance to sell it, Disney sues Badenov in a U.S. court having personal jurisdiction.

a) Disney can't sue Badenov for Badenov' Russian actions because U.S. law doesn't have
extraterritorial effect.
b) Disney can't sue Badenov under 602 for Badenov' importation of the material into the
U.S. because of 109(a)'s limitation on the distribution right.
c) Disney can sue Badenov for Badenov' importation of the material into the U.S. because 109(a)'s limitation on the distribution right doesn't apply to material that was manufactured in the U.S.
d) Disney can sue Badenov for Badenov's Russian actions under Russian law in U.S. courts.
e) Two of the above are true.

17) You copy something that was written by a judge a year ago. Whether your copying infringes copyright depends on:
a) Whether the judge prepared the work within the scope of his employment.
b) Whether the judge affixed a copyright notice to the work.
c) Which court system the judge works in.
d) All of the above.
e) Two of the above.

18) (See images 3) John Singer Sargent painted and registered "Muddy Alligators" in 1912. Sargent died in 1925. The copyright expire(d/s) in:

a) 1981.
b) 2007, but only if renewed in 1940.
c) 1940.
d) 2025 if the work is a work made for hire and 2030 if it is not.
e) Not enough facts are given to answer this question.

19) Krakauer writes a novel and gives Paramount the right to make a film based on it. To be valid, the agreement:

a) Must be in writing and signed by Krakauer.
b) Must be in writing and signed by Krakauer and Paramount.
c) Must be in writing, but need not be signed either by Krakauer or Paramount.
d) Need not be in writing, if Krakauer retains the right to reproduce the novel in other media.
e) Need not be in writing, if Krakauer retains the right to grant to others the right to produce films based on the novel.

For the next two questions, assume the following sequence of events:

1/l/98 Marquez writes a short story called Fetid Ruler.
1/15/98 Marquez gives Llosa a nonexclusive license to publish the short story in Llosa's
2/l/98 Marquez transfers to Fred all exclusive rights in the story (the transfer is properly
I written and signed).
2/15/98 Marquez transfers to Rick all exclusive rights in the story (the transfer is again
properly written and signed).
2/22/98 Rick records the transfer to him.
2/28/98 Fred records the transfer to him.

20) As between the transfer to Rick and the transfer to Fred:

a) The transfer to Fred prevails.
b) The transfer to Rick prevails.
c) The transfer to Rick prevails, if but only if, it was taken in good faith without notice of
the transfer to Fred.
d) The transfer to Rick prevails, if but only if, it was taken in good faith without notice of
the transfer to Fred, and for valuable consideration.
e) Neither transfer is valid

21) As between the transfer to Rick and the license to Llosa:

a) The transfer to Rick prevails.
b) The license to Llosa prevails.
c) The license to Llosa prevails if it's in writing and signed by Marquez.
d) The license to Llosa prevails, but only if it's in writing, signed by Marquez, and recorded before the transfer to Rick was recorded.
e) The license to Llosa prevails, but only if it's in writing, signed by Marquez and Llosa, and recorded before the transfer to Rick was recorded.

22) Which of the following is not necessary for a work to be seen as a joint work?
a) The co-authors prepared the work with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.
b) The co-authors invested a roughly equal amount of effort.
c) Each of the co-authors supplied copyrightable expression, not just ideas or facts.
d) The co-authors intended that they be identified as co-authors.
e) (b) and (d)

23) Which of the following performances is most likely not to be seen as a public perfon-nance?
a) A performance on North Dakota Public Radio at 3 am, which is only heard by 3 people in a bar.
b) A performance in a park, which is only heard by 5 people who are all members of the same family.
c) A performance in my house, which is being occupied by 20 family members and social acquaintances of mine.
d) All the above performances are likely to be seen as public performances.
e) None of the above are likely to be seen as public performances.

24) If I lawfully own a copy of Joe's screenplay, which of the following can Joe stop me from doing?
a) Joe can stop me from destroying it.
b) Joe can stop me from publicly displaying it.
c) Joe can stop me from publicly performing it.
d) Joe can stop me from selling it.
e) Two of the above are true.

25) Sasha writes a poem about copyright law; I like it so much that I make copies and distribute it to my whole Copyright class. Sasha sues me for infringement. Which of the following sections of the Copyright Act will be most useful to my defense (even if it might not guarantee victory for me)?
a) 110.
b) 107.
c) 101.
d) 106A.
e) 109.